Legal Grounds for Protection of North Korean Refugees

The representative of China should check the international law to which his country is bound. He will find three important reasons why North Koreans who leave their country can be considered persons in need of international refugee protection. The first relates directly to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, to which 144 states, including China, are party. Under the Refugee Convention, a person is deemed a refugee when he or she is outside her country of origin because of "a well-founded fear of being persecuted" in that country "for reasons of race, religion, nationality, membership of a particular social group or political opinion" and therefore is unable or unwilling to avail himself of the protection of that country.[1] That means that North Koreans who cross into China with a well founded fear of persecution on political, religious or other grounds should be considered refugees under the Refugee Convention and not be forcibly returned to North Korea where their lives or freedom would be threatened by such persecution. The Convention specifically prohibits their expulsion or refoulement except on grounds of national security or public order. Because China has no refugee adjudication process to determine who is a refugee and gives the UN High Commissioner for Refugees (UNHCR) limited or no access to North Koreans crossing into China, it has not been possible to ascertain how many North Koreans are seeking asylum in China because of a well-founded fear of political or other persecution. Chinese officials presume that all North Koreans who enter their country are doing so for economic reasons, but without screening them to verify whether such is the case. Even some Chinese academics and experts question their government's presumption. At an international symposium in October 2008, the Dean of the Political Science Department at Yanbian University in Jilin province gave a lecture entitled "Chinese Policy on the Korean Peninsula and the North Korean Defector Issue," in which he publicly acknowledged that, "It is clear that there are a number of refugees among those defecting from North Korea."[2]

Second, even North Koreans crossing into China for reasons of economic hardship may be refugees if they have been compelled to leave because of government economic policies tantamount to political persecution. North Koreans crossing into China or other countries may have had insufficient access to food and material supplies because they were not part of the privileged political elite in the country. In times of distress in particular, food is distributed by the government first to the army and Party based on political loyalty. Many of the North Koreans crossing into China during periods of famine are reported to come from the unprivileged classes, in particular, the "impure," "wavering" or "hostile" classes under the sungboon "caste system."[3] Their quest for economic survival could well be based on political persecution. Examining such cases in a refugee determination process might establish that certain numbers of North Koreans crossing into China for economic survival merit refugee status under the terms of the 1951 Convention.

Third -- and this by far is the most pertinent and compelling reason -- many of the North Koreans outside their country fit the category of refugees sur place. As defined by UNHCR, refugees sur place are not persons who are refugees when they leave their country. They become refugees at a later date because of a valid fear of persecution upon return.[4] Thus, the North Koreans who leave their country for economic reasons can become refugees sur place if they have valid fears of persecution and harsh punishment upon return. In the case of North Koreans, this will not be difficult to prove. Their government deems it a criminal offense to leave the country without permission, so that when they are returned, they can expect to undergo arrest and detention and may also undergo beatings, sexual violence, forced labor, forced abortion, torture and in some cases death. Stringent punishment is in particular meted out to North Koreans who have associated abroad with foreigners (e.g. missionaries, aid workers or journalists), have sought "political asylum" in foreign countries, have tried to obtain entry into South Korea, or in the case of North Korean women, have married and became pregnant by foreign men. When the UN High Commissioner Antonio Guterres visited China in 2006, he raised the concept of refugees sur place with Chinese officials in discussing the forced return of North Koreans; he told them that forcibly repatriating North Koreans without any determination process and where they could be persecuted on return stands in violation of the Refugee Convention.[5] To UNHCR, since 2004, North Koreans in China are "persons of concern," [6] who should not be returned to their country without establishing their status and being assured that they will not be harmed.

Other UN bodies have also called on China to cease deportations of North Koreans as a violation of international law. China, for example, is a party to the UN Convention against Torture, which provides that "No state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture."[7] Since North Koreans who are returned to their country are known to face stringent punishment, the Committee against Torture, the body monitoring the Convention's implementation, has called upon China to establish a screening process to examine whether North Koreans will face the risk of torture on return, to provide UNHCR access to all North Korean persons of concern, and to adopt legislation incorporating China's obligations under the Convention with regard to deportations.[8]

To date, China has not enacted legislation to codify these obligations even though it has been a party to the Refugee Convention since1982, a party to the Torture Convention since 1988, and a member of the Executive Committee of the High Commissioner for Refugees' Program (ExCom) since 1958. Indeed, China told the UN Committee against Torture that North Koreans are illegal migrants or "snakeheads."[9] It also signed a Protocol with North Korea that allows for deportations by providing cooperation between China and North Korea in "preventing the illegal border crossing of residents." [10] A local law in Jilin province further requires the return of North Koreans who enter the province illegally. Both the Chinese-North Korean agreement and the Jilin law stand in violation of the Refugee Convention.

China, however, can not be taken to an international court on this. On ratifying the Refugee Convention, China reserved its position on the use of the International Court of Justice. But even if it hadn't, no state has yet been willing to take to the International Court a dispute with another state about the interpretation or application of the Refugee Convention.

In practice, however, China has allowed large numbers of North Koreans to reside illegally in its country although they have no rights and are vulnerable to exploitation and trafficking as well as to forced returns where they will face persecution and punishment. By contrast, China has allowed refugees from other countries to integrate in China or resettle elsewhere and has cooperated with UNHCR in these arrangements. But North Koreans have been exempted from such a process. To improve China's understanding of asylum and refugee law, UNHCR has been holding workshops in China on the rights of refugees and the obligations of states to provide protection for them. UNHCR has also proposed to China, a special humanitarian status for North Koreans, which would enable them to obtain temporary documentation, access to services, and protection from forced return. China to date has refused any sort of temporary protected status for them. Some local Chinese officials, however, have begun to provide documents to some married North Korean women and their children which give them some form of protection.[11] This should be encouraged.

UN human rights treaty bodies have urged China to extend protection to North Korean women and children in line with its obligations under human rights law. The Committee on the Elimination of Discrimination against Women, for example, has called on China "to review the situation of North Korean women refugees and asylum-seekers" and "ensure that they do not become victims of trafficking and marriage enslavement because of their status as illegal aliens." [12] Similarly, the UN treaty body which monitors compliance with the Convention on the Rights of the Child, has called on China to ensure that no unaccompanied child from North Korea is returned to a country "where there is substantial grounds for believing that there is a real risk of irreparable harm to the child."[13] The Committee has also called for access of North Korean children in China to health, education and other basic services.

Overall, it is important to point out that North Koreans outside their country are increasingly being seen by international bodies as persons in need of international refugee and human rights protection. Their forced return to North Korea is uniformly opposed by UNHCR and other UN bodies as a violation of international law. Today, with declining food reserves and shortages of medicine being reported once again in North Korea, it is critical that the rights of North Koreans to leave their country and be protected from forced returns be internationally defended.

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[1] 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

[2] "China May Recognize Some NK Refugees," quoting Professor Gan Il Kim, NorthKoreanRefugees.com, March 15, 2009, at http://www.northkoreanrefugees.com/2009-03-China-change.htm

[3] See, for example, Committee for Human rights in North Korea, Lives for Sale: Personal Accounts of Women Fleeing North Korea to China, 2010, p. 12; and Joshua Kurlantzick & Jana Mason, "North Korean Refugees: The Chinese Dimension," in The North Korean Refugee Crisis: Human Rights and International Response, eds. Stephan Haggard and Marcus Noland, U.S. Committee for Human Rights in North Korea, 2006, pp. 16, 41, 43.

[4] See Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, 1979, para. 94. For a discussion of refugees sur place in the Handbook, see Committee for Human Rights in North Korea, Lives for Sale, pp. 56-9.

[5] Interview with UNHCR staff, 2010; and Statement to media by UN High Commissioner for Refugees Antonio Guterres on conclusion of his mission to the People's Republic of China, Beijing, 23 March 2006.

[6] In September 2004, the High Commissioner announced before EXCOM, UNHCR's Executive Committee, that North Koreans in China are "persons of concern." One reason why UNHCR used this term was that it had no access to the North Koreans; another was that North Koreans could be said to be dual nationals who could avail themselves of the protection of South Korea (under the Refugee Convention, persons who can avail themselves of the protection of a country of which they are also nationals are to be excluded from refugee status).

[7] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Article 3.

[8] Concluding Observations of the Committee against Torture: China, CAT/C/CHN/CO/4, 12 December 2008.

[9] The term snakehead has been said to connote a slithering from point to point and/or human traffickers or smugglers.

[10] Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas, 1986, Article 4.

[11] See Committee for Human Rights, Lives for Sale, p. 60.

[12] Concluding Comments, Committee on the Elimination of Discrimination against Women: China, with regard to the Convention on the Elimination of All forms of Discrimination against Women, CEDAW C/CHN/CO/6, 25 August 2006.

[13] Concluding Observations: China, Committee on the Rights of the Child, CRC/C/CHN/CO/2, 24 November 2005, paras. 80-82.